Chapter 2 - The Context and Culture in which Long Complex Cases have Arisen

A. Do We Need to Begin with a Definition of "Long Complex Cases?"

We have not attempted to settle on a definition of what we mean by the "long complex criminal case". Various definitions exist, for example, the Ontario Superior Court has developed a "Special Assignment Court" practice for cases likely to take three weeks or more of trial time. Legal Aid Ontario (LAO) has a special case management procedure for cases likely to cost $75,000 or more in fees payable to defence counsel (it would generally require a two to three week preliminary inquiry followed by a six to seven week trial to reach and exceed this budget). In the United Kingdom, various special practices and procedures have been developed for "Very High Cost Cases" which are defined as trials lasting over 41 days (or about eight weeks).

These regimes will be discussed in greater detail in our Report. However, we do not think it useful to debate whether one definition is preferable to another. It is beyond dispute that all criminal trials have become much longer and the criminal trial process has become much slower in the last 20 to 30 years. This phenomenon is not limited to a particular class of case and the solutions that we propose to make the system more efficient and effective need not be limited to a particular length of complex case, whether three weeks or six weeks or eight weeks.

If our recommendations are accepted, they can be implemented incrementally, as available resources and institutional capacity permit. We have not concerned ourselves with detailed implementation plans. Rather, we have made broad structural proposals for change to legal procedures and practices and to the legal culture. When it comes to the implementation stage, definitions may become useful as to which group of cases will be addressed first. At that stage, we recommend the kinds of definitions described above.

B. The Legal or Law Reform Causes of Long Complex Trials

We wish to stress at the outset that no one should be surprised that criminal trials have become increasingly long and complex in the last 20 to 30 years. Both elected lawmakers and judicial lawmakers are themselves responsible for much of the transformation that we have witnessed and it is now a well known phenomenon.

Leaders within the courts have been expressing concern about the problem for some time. In a speech to the Empire Club on March 8, 2007, titled "The Challenges We Face", Chief Justice McLachlin stated that murder trials used to take "five to seven days," in the recent past, and now "they last five to seven months." She described these changes as giving rise to "urgent" problems and "incalculable" costs. 1 In a similar but much earlier speech to the Empire Club on April 13, 1995, titled "The Role of Judges", former Chief Justice Lamer described "complexity and prolixity in legal proceedings" as "our greatest challenge" and one that could render the justice system "simply irrelevant" unless it is solved. 2 Finally, in a recent unanimous judgment dealing with a particularly complex species of wiretap motion, the Supreme Court of Canada adopted a much earlier pronouncement of Justice Finlayson, made in the Ontario Court of Appeal in 1992, to the effect that "our criminal trial process" has become "bogged down" in an "almost Dickensian procedural morass" and that the public would soon "lose patience with our traditional adversarial system of justice." 3

Senior government officials, and the Attorneys General across the country, have expressed similar concerns about the phenomenon of overly long criminal trials and their unduly complex processes. These concerns culminated at the most recent meeting of Federal, Provincial and Territorial Ministers Responsible for Justice and Public Safety, at Winnipeg on November 15, 2007, when the following Communiqué was issued: 4

Ministers also agreed with the recommendations from officials to improve the way large and complex trials are conducted. The officials recommended legislative amendments to reduce the risk of mistrials and address some of the difficulties associated with the management of mega-trials, among others. Ministers agreed to refer the report to the Department of Justice Canada for the detailed policy work necessary to move the initiative forward.

We will comment later in our Report on the legislative proposals that were put to Ministers at the Winnipeg meeting.

We believe there were three major events that played a significant role in transforming the modern criminal trial, from the short efficient examination of guilt or innocence that existed in the 1970's, to the long complex process described in the above communiqué, speeches and cases. These three causal events were the passage of the Charter of Rights and Freedoms, the reform of evidence law by the Supreme Court of Canada, and the addition of many new complex statutory provisions to the Criminal Code and other related statutes. These three developments were brought about by the courts themselves and by our elected lawmakers who may not have foreseen their combined impact on the criminal trial process. We discuss these three causal events below, not to be critical, but simply to explain the very different and challenging legal context in which the modern criminal trial now operates. The problems associated with long complex trials, and their solutions, arise from that context.

The first transformative event was the constitutionalization of criminal law and criminal procedure which occurred in 1982 with the passage of the Charter of Rights and Freedoms. The Charter articulated longstanding rights, added some new rights and, most importantly, introduced a new set of remedies. Many of these rights and remedies were specifically directed at the criminal trial. Indeed, ss. 7 to 14 of the Charter can be seen as a constitutional code of criminal procedure. These developments inevitably led to a broad range of procedural motions that had not previously existed, in order to enforce the rights and remedies now entrenched in the Charter. All of these motions were complex, both factually and legally, and each one took additional time to hear and resolve.

For example, one of our case studies, Khan and Fatima, was a murder case involving allegations that the two accused had killed and dismembered their young child. The trial itself was relatively speedy, lasting about 35 court days. The preliminary inquiry had taken seven days. However, the pre-trial motions extended over a two and a half year period. Many of the pre-trial motions involved Charter issues. 5

An important related aspect to the essentially political decision to constitutionalize the criminal trial was the judicial approach to interpreting and applying the new Charter rights and remedies. In particular, that jurisprudence made certain personalized factors very relevant to the determination of whether a Charter remedy should be granted. For example, the leading authorities on s. 24(2) of the Charter established a test for excluding evidence that involved consideration of whether there had been "bad faith" or "egregious" conduct, including "such questions as: was the violation deliberate, wilful or flagrant, or was it committed in good faith?" 6 In a similar vein, the jurisprudence interpreting and applying s. 7 Charter rights held that "the most relevant considerations are the conduct and intention of the Crown", that "a finding of flagrant and intentional Crown misconduct may make it significantly more likely that a stay of proceedings will be warranted" and that "conspicuous evidence of improper motives or of bad faith" is essential to a successful s. 7 motion for a stay of proceedings. 7 Section 7 Charter motions relating to disclosure are a major cause of delay in long complex cases. We deal with this problem at some length in Chapter 3.

This personalized approach to Charter remedies inevitably "led to an unfortunate escalation of the rhetoric" in criminal trials, as the Ontario Court of Appeal put it, and a culture of personal attacks and animosity between the parties became a more frequent feature of court room conduct. This, in turn, contributed to the length and complexity of criminal trials. 8

The second causal event that inevitably contributed to the long complex trials of the modern era was the Supreme Court of Canada's decision to fundamentally reform the law of evidence. These reforms had the general effect of broadening the scope of admissibility by replacing the old rules-based approach of the common law with a much more flexible principles-based approach. For example, the hearsay rule was significantly changed such that certain out-of-court statements that would never have been admissible under the pre-existing common law now became admissible. 9 Similarly, the "voluntariness" test for confessions was changed in a way that has sometimes led to the admissibility of statements made by the accused, after repeated, lengthy and forceful interrogations, that most Crown counsel would likely not have attempted to introduce into evidence in an earlier era. 10 Finally, the law of privilege was reformed pursuant to the "principled approach" so that exceptions to existing privileges could be developed and new claims of privilege or even "partial privilege" could be recognized, based on "the particular circumstances of each case." 11

These significant changes to evidence law led to their own set of motions, in addition to the new Charter motions. These motions concerning the admissibility of evidence at common law were now characterized by much greater flexibility than the old rules-based approach. The Supreme Court of Canada, when developing these new principles, would typically identify a number of factors or criteria to be considered while making it clear that the factors were not exhaustive, that "rare" or "exceptional" substitutes for these factors might be found and that, in any event, there was to be a great deal of discretion in applying the factors as they "must be interpreted flexibly, taking account of the circumstances of the case." This new "principled approach" was subtle, nuanced and uncertain. It became very hard to predict the likely result of one of these motions and a great deal of evidence was often led on the motion itself because the factors were so uncertain and so case specific. 12

These developments caused lawyers to take their chances when deciding whether to bring an evidentiary motion, and the motions themselves often became longer or as long as the trial. Many commentators correctly predicted that a by-product of "the principled approach" to evidence law would be "longer trials, more delays and increased costs of litigation." One leading commentator presciently noted in 1994 that "Trial judges simply do not have the luxury to spend hours, let alone days, pondering the reliability of a particular piece of evidence What is required is a set of rules which can be applied to most situations." 13

The third causal event that contributed to the development of long complex trials was the continuous stream of statutory amendments that took place at the same time as the above developments in the common law and in Charter remedies. Over the past 20 years Parliament has constantly altered and added to the existing body of statute law found in the Criminal Code, the Canada Evidence Act, the previous Young Offenders Act and the new Youth Criminal Justice Act. The Criminal Code is about double the size it was 30 years ago. The new legislation is complex, unfamiliar and untested and it too has led to lengthy new proceedings.

The new legislation was invariably passed in response to some significant social problem. For example, when gang-related violence began to increase in the 1990's, especially in Quebec, the new "criminal organizations" provisions of the Criminal Code were added. When disclosure rules relating to sexual assault prosecutions were seen to threaten the privacy interests of complainants, also in the 1990's, the new "third party records" provisions were added to the Criminal Code. Finally, the events of September 11, 2001 caused widespread concern about crimes of terrorism and Parliament responded by enacting a large number of new offences and new procedures in the Anti-Terrorism Act.

These three sets of statutory amendments are only examples. There were many others but the above three are good illustrations of the impact that statutory law reform has had on the length and complexity of criminal trials.

Beginning with the 1997 "criminal organization" legislation, as amended in 2001, its effect on the substantive criminal law was to add three new offences, set out in ss. 467.11, 467.12 and 467.13. All three offences require the commission or planned commission of some already existing indictable offence such as murder, robbery, extortion, or drug trafficking. Generally speaking, the three new provisions then add a further element, to the effect that the existing offences or planned offences must be committed by a "criminal organization" or "for the benefit of the criminal organization." If this added element can be proved, s. 467.14 then provides that the sentence for the new "criminal organization" offence is to be served consecutively to any sentence for the original or underlying Criminal Code offence. In other words, the general effect of the legislation is to enact an aggravated form of already existing offences, if they can be proved to be part of a "criminal organization", which is a new statutory term defined in s. 467.1.

These offences have become a major feature of the modern "mega-trial" in Ontario, many of which are gang-related, and they obviously require considerable additional trial time to prove the additional aggravating "criminal organization" element, which can then result in a lengthy consecutive sentence. A simple illustration of this point is found in the leading "criminal organization" case in Ontario, where the underlying offence was a relatively straightforward extortion that the Crown was able to prove, without much difficulty, in little more than a week. The "criminal organization" portion of the trial then lasted for a further period of approximately six weeks with complex lengthy evidence about the Hells Angels. 14

The 2001 anti-terrorism legislation led to a similar lengthening of the traditional criminal trial. It created a number of new offences based on an entirely new statutory concept, "terrorist activity", with its own lengthy definition found in s. 83.01. Like the "criminal organization" definition, the new statutory concept of "terrorist activity" is built on existing offences to some extent, such as "intentionally causes death" or "intentionally causes substantial property damage." However, the definition goes on to require proof of entirely new elements, including "a political, religious or ideological purpose" and "the intention of intimidating the public or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act." If the Crown successfully proves the new aggravating element of "terrorist activity", as part of any of the new offences, lengthy consecutive sentences are required by s. 83.26 in the same manner as under the "criminal organization" legislation. These complex new elements and offences will obviously require additional trial time, beyond the time needed to prove any ordinary underlying Criminal Code offence or offences. 15

However, an additional complicating factor with the new terrorism offences is the procedure under s. 38 of the Canada Evidence Act for disclosure and use of any evidence that implicates "national security." These new provisions are long and complicated, occupying between 11 and 17 pages in the leading annotated statutes. Their most important feature, in terms of lengthening the modern criminal trial, is s. 38.04 which gives exclusive jurisdiction to the Federal Court to decide these issues, and s. 38.09 which provides for interlocutory appeals by either party to the Federal Court of Appeal. The obvious effect of these provisions is to bifurcate and delay the modern criminal terrorism trial, by removing certain disclosure and evidentiary issues from the jurisdiction of the trial court and by permitting interlocutory appeals. Recent terrorism cases have been delayed by a year or more because of these collateral proceedings. 16

The final illustration of the impact of federal legislative amendments on the length and complexity of criminal trials is the "third party records" provisions added to the Criminal Code in 1997. Once again, these provisions are complicated. They define "record" broadly in s. 278.1 as any record "for which there is a reasonable expectation of privacy" and then establish a two-step judicial procedure for disclosure of such records. The first step is set out in s. 278.5 and requires the trial judge to be satisfied that the record is "likely relevant" and "necessary" but this initial determination must be made without actually examining the record or records. In addition, the judge must consider a long list of eight separate factors enumerated in the statute when deciding "likely relevance" and "necessity". If satisfied on this initial issue, the judge may then personally inspect the record or records. Finally, the judge may order production to the accused but only if satisfied under s. 278.7 that any document or part of a document to be produced is "likely relevant" and "necessary". Furthermore, the same list of eight factors must be considered again in relation to the production of each document or part of a document, as well as "the salutary and deleterious effects" on the accused's "right to make full answer and defence and on the right to privacy and equality of the complainant or witness."

A crucial aspect of these provisions is s. 278.4 which grants standing rights to the custodian of the records, the complainant or witness and "any other person to whom the record relates." As a result of this provision, it is not unusual to have multiple lawyers representing multiple parties at these hearings. The lawyers are entitled to make repeated submissions to the trial judge at this complex multi-step hearing where the issue involves the repeated weighing of eight competing factors. It can be seen that Parliament has adopted the Supreme Court of Canada's approach to evidence law where clear rules have been replaced with broad and uncertain discretionary balancing of competing principles or factors. 17 This all takes time and many recent cases illustrate the delays brought about by these complex "third party records" procedures. 18

In conclusion, it can be seen that the criminal trial courts have had to absorb a continuing onslaught of new Charter remedies, new common law evidence principles, new legislative procedures and new offences over the past 20 to 30 years. It is hardly surprising, in these circumstances, that the short, simple and efficient criminal trial of the 1970's has been replaced by the long, complex and often inefficient criminal trial of the 21st century.

As stated earlier, we do not make these observations in order to be critical of the Charter or of the Supreme Court of Canada or of Parliament. On the contrary, we believe that the three transformative initiatives described above were understandable. Strong arguments exist in favour of entrenched constitutional rights, principles-based evidence law, "criminal organization" offences, "terrorist" offences and "third party records" procedures to protect the privacy interests of complainants and witnesses. We do not recommend turning back the clock on these initiatives. They represented legitimate policy choices, even though they came with significant costs to trial efficiency.

What we do wish to note is that the convergence of all three of these major developments, during a discrete period of time in our history, has placed an enormous burden on the trial courts. It appears that none of the law reformers, both in the Supreme Court of Canada and in Parliament, who initiated these profound changes to the law, ever stepped back and asked whether the justice system could effectively and efficiently absorb all of these changes at once. Every one of the three major changes summarized above had the effect of creating longer and more complex court proceedings. Cumulatively, their impact on trial length, efficiency and delay has been very significant.

We therefore begin with the realization that the criminal trial will never be what it was in the 1970's. We are operating today in a very different legal context.

C. Within this Changed Legal Context, the Justice System Needs to do Better

Unfortunately, the many significant changes to the criminal trial summarized above have been exacerbated by certain weaknesses within the justice system. In particular, we note three systemic or cultural tendencies that seem to be worse today than they were in an earlier era. It is in these broad areas, we believe, that the justice system can improve significantly. The three observations that we make in this section of our Report are admittedly broad and impressionistic. We do not wish to refer to specific cases in support of our observations, as we believe that it would be unfair to single anyone out for criticism.

Our first observation is that the new Charter remedies, new evidence law motions and new statutory procedures (like s. 38 of the Evidence Act and s. 278 of the Criminal Code), as summarized above, all share one common feature. They generally involve pre-trial proceedings. Our impression is that the trial itself, in most cases, remains relatively straightforward today, as it always was, involving the proof or lack of proof of a criminal event or allegation. What has changed most in modern criminal proceedings is the development of elaborate pre-trial motions practice which has the effect of delaying the trial.

The justice system has not responded well to this phenomenon of delaying the trial. Indeed, a somewhat complacent culture seems to have developed. There appears to be an attitude within the justice system that motions will inevitably go on for months, cross-examinations and examinations of witnesses and legal arguments will inevitably go on for days and trials will inevitably take years to commence. Furthermore, when the slightest new development occurs in a case, counsel for the defence or Crown reflexively seek adjournments and they are often granted. Whenever counsel brings a motion, the Court patiently listens to it, no matter how unfounded or fanciful it may be. In addition, Legal Aid will pay counsel for arguing any motion in court, regardless of its merits or utility to the case, thus building in a financial incentive for endless motions.

We believe this culture must change and that lawyers and judges must aspire to the standards of an earlier era where these kinds of delays were not tolerated. We believe that legal arguments should be succinct and focused, as should examinations and cross-examinations of witnesses, and that adjournments should only be granted where some truly significant development arises unexpectedly. Resourceful counsel for the Crown or defence can adapt and adjust to most developments in a case without the need for delays. We also believe that frivolous motions should be dismissed summarily.

Many of our recommendations below are directed at managing the pre-trial phase of the case more forcefully and efficiently and encouraging and requiring counsel to conduct their cases in a disciplined and focused manner. In particular, Chapter 4 is directed at developing more effective case management practices, especially at the pre-trial phase, and Chapter 5 deals with Legal Aid's responsibilities in this regard. As a result of reforms in these two areas, we hope that the trial of the merits will be reached in a more timely way. The modern culture of delay causes great harm to public confidence in the justice system and it needs to change.

The second broad cultural phenomenon that seems to have emerged from the intense period of law reform, summarized above, is that the system has become both error-prone and fearful of error. The avalanche of new and complex legal procedures, whether from the Charter, from the evidence law "revolution" or from continuous statutory amendments, has created a system with too many difficult and nuanced decision points. It is hardly surprising that errors are made in this new legal environment. In addition, we observe that judges and lawyers seem to be afraid of these kinds of errors and so they proceed in an overly cautious manner, calling more evidence than they need to, including marginally useful evidence, listening to more argument than they need to, disclosing more information than they need to, taking too long to rule and then ruling in the most protective way, out of undue concern for appellate review. All of these trends contribute to overly long trials.

Again, many of our recommendations below are directed at trying to reverse this phenomenon of exhaustive and exhausting lawyering and timid judging. We believe that the increasing complexity of modern criminal procedure and evidence law has created a need for judges with real expertise who will be able to effectively manage these cases, especially at the pre-trial stage. We also believe that effective case management practices can be stated clearly and simply, as rules, and not as infinitely flexible principles. Finally, we believe that the leading members of the bar and the best Crown prosecutors must be given conduct of the most serious and difficult cases so that errors are avoided.

The third and last of the broad cultural changes that we have noted is a significant increase in animosity and acrimony between counsel. Many of the recent major cases that have gone on for far too long have been characterized by abusive and uncivil conduct from one side of the bar or the other and, on occasion, from both sides. The adversary model of trial procedure has always been one that creates opportunities for conflict, given the oppositional roles of the parties. However, the significant reforms to the system summarized above have created many new opportunities for conflict. As already noted, the way in which certain rights and remedies have been defined in the case law seems calculated to increase the potential for personal attacks as between counsel. In other words, instead of calming down the inherently combative nature of the adversary system, by fostering respect and collegiality and cohesion amongst the parties, the reforms of the modern era have contributed to an environment of greater animosity.

This is a very serious development that must be stopped. When counsel attack each other, on a personal level, the adversary system breaks down because nothing gets settled out of court. Every petty dispute is fought out in the court room in a hostile and provocative way, and the trial ceases to focus efficiently on the real issues in the case.

Again, many of our recommendations below are directed at this phenomenon by encouraging the judiciary to insist on high standards of civility in their courts, by encouraging the Law Society of Upper Canada (LSUC) to take on a strong disciplinary role in this area and by recommending that Legal Aid Ontario exercise its statutory mandate to grant certificates only to those counsel who deliver high quality, effective and efficient legal services. In particular, Chapter 6 deals with this broad topic.

D. The Focus of our Recommendations

It can be seen from the above discussion that a mixed picture has emerged from our Review.

On the one hand, we believe that the trial courts have been subjected to enormous stresses from external forces entirely beyond their control. These external forces - the Charter, the "principled approach" to evidence law, and the flood of statutory amendments - have all conspired to inevitably create longer and more complex criminal trials.

On the other hand, we believe that the justice system has not responded as well as it might have to these new challenges. The inevitable lengthening of the criminal trial in the modern era has been exacerbated by weaknesses in the justice system itself. In particular, a culture of tolerance towards delay has developed, an overly defensive approach to lawyering and judging has emerged, and acrimony and misconduct in the court room are on the increase.

We have identified five major areas where reforms or improvements are desirable. We do not say that these five areas are exhaustive. Many other sensible reforms were suggested to us. Rather, we believe that these five areas are the most responsive to the changes and developments within the justice system noted in this chapter. If the justice system can implement reforms in these five broad areas, we believe they will have a significant impact on the modern phenomenon of overly-long, much-delayed, inefficient and unfocused criminal trials.

We also believe that the reforms we have recommended in these five areas are achievable. As a result of the two stages of consultations that we conducted over the last six months, as described in Chapter 1 above, we have refined our recommendations. We have tried to be both pragmatic and principled and we believe that we have ended up with positions that are broadly accepted by the leaders of all the participants in the justice system. A bigger or more ambitious package of reforms may not achieve the same degree of broad support.

The four major players in the justice system are constitutionally independent from one another - the police, the Crown, the defence and the judiciary. The Law Society and Legal Aid also enjoy a degree of statutory independence. To achieve broad support for a set of reforms, amongst all six of these determinedly independent players, was one of our main goals. We hope that we have achieved it.

Each of the five major areas of proposed reform will be discussed in a separate chapter below. By way of summary, they are as follows:

Disclosure of the relevant and non-privileged information in the Crown's possession and the relationship between the police and the Crown at the pre-charge stage (Chapter 3);